Justice Scalia's concurring opinion in Baze v. Rees is a must-read. Responding to Justice Steven's newly-minted view that the death penalty is now somehow always a violation of the Eighth Amendment, Justice Scalia marshals the arguments in favor of retribution and deterrence (citing Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L.Rev. 703, 706 (2006), among other sources). His opinion concludes powerfully:

But actually none of this really matters. As Justice STEVENS explains, " 'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.' " Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); emphasis added; some internal quotation marks omitted). "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is Justice Stevens' experience that reigns over all.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.

I think Stevens actually has a pretty solid point here:
In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim.16 This trend, while appropriate and required by the Eighth Amendment’s prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the
retribution rationale is based.

And Scalia's claim that he takes no position on the desirability of the death penalty is the most disingenuous thing I've ever heard.

Really? And what happens if your "evolving standards of decency" evolve in a different direction from mine? We fight until the one with the bigger club wins? The alternative to the rule of law is the rule of force, and we get closer to it every time someone who thinks like Stevens prevails.

The exchange between Stevens and Scalia is entertaining, but hardly central to the decision. And I think you're overstating Stevens' "new" position. He hasn't been pro-DP for 20 years. But neither has he, like Brennan and Marshall, universally dissented from all cert denials in DP cases, and I don't expect him to do so in the future.

He was just waxing philosophical, and Scalia was tweaking him for it. As Scalia tweaks go, this one won't even leave that much of a bruise -- not on Stevens, whose thick skin reflects his decades on the Court.

Actually, as Justice Scalia demonstrates, the point you cite, Ahser, is absurd.

It essentially reduces to the proposition that retribution is an all or nothing proposition. Either we must go back to drawing and quartering or we must abolish the death penalty altogether, simply because less barbaric methods of execution cannot be "retributive" enough. That of course is nonsense. What's more, it is not up to the Supreme Court to determine how much retribution is enough. If the society believes that lethal injection serves sufficient retributive function, why is Justice Stevens' opinion to the contrary matters?

I note Scalia's omission of the experience of the people in the mercy seat. But I guess they're not the ones charged with defending and upholding the Constitution. And it tends to be a little hard to ask them afterwards what their experience was.

Asher said: "And Scalia's claim that he takes no position on the desirability of the death penalty is the most disingenuous thing I've ever heard."

Well, I don't know. Scalia is widely knows as a practicing Catholic and the Catholic church is opposed to the death penalty--he very well may be personally opposed as well. Of course, that's his very point--it doesn't matter what he thinks.

Several years ago I read about the possible replacement of lethal injection on Eighth Amendment grounds. One method advanced as not vulnerable was a gas chamber using nitrogen. The article stated that nitrogen would adhere to the hemoglobin in substitute of oxygen. The scenario included no possibility of pain as consciousness would be lost far before asphyxiation. I don't have the link as I think the article was on NRODT. This would follow the premise forwarded be Asher: A punishment so painless it must be prohibited.

Must punishments be both cruel and unusual to run afoul of the Eighth Amendment? The DP has never been unusual. It was regularly employed at the time the Constitution was drafted. Stevens things the DP is too cruel, but he doesn't tell us why its too cruel. It's just his personal feeling. Putting people in prison is also cruel. Cruel is the whole point. This is what happens when the leaders of a society stop believing in themselves and their country.

" " 'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.' " Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); emphasis added; some internal quotation marks omitted). "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional. Ante, at 17 (emphasis added)."

For this alone he should be impeached and removed from the court. If the constitution specifically permits something (the death penalty), that thing cannot be on its face unconstitutional. The arrogance expressed by Stevens is a direct slap at every citizen of this country. You don't count. Your vote means nothing. The constitution is only what I say it is and don't you dare believe your lying eyes. Vanguard of the proletariat crap. For this reason alone it is enough to vote for McCain.

I agree with you completely. Stevens should be removed from the court. But let's face it, his kind of thinking is common fare among elites in government, media, academia and the legal system. They have usurped American democracy. Europeans are even worse off. After voting down the EU constitution several times, the European elites shoved it down the throats of the people by imposing it as a treaty. The people of western Europe stood by powerless watching their governments dissolve national sovereignty by fiat.

I wish I had your confidence in McCain. None of the above for president this year.

Suppose that somewhere in the United States a judge sentenced someone to wash the windows of a skyscraper. The person sentenced had fear of heights and appealed on 8th amendment grounds.

A judge deciding the case might do as Justice Stevens did, and write, "The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of any punishment under the Eighth Amendment . . . I have relied on my own experience in reaching the conclusion that the imposition of this sentence on someone with fear of heights is cruel and unusual and therefore unconstitutional."

What is the problem here, people? What is wrong with Justice Stevens relying on his own experience in deciding when an unusual punishment is also cruel? (The death penalty is now so rarely imposed that it can reasonably be called "unusual.")

The two great weaknesses of your Constitution are (1) the failure of "Separation of Powers" by which your Head of the Executive is also your Elected Monarch, and (2) the lack of any mechanism that requires the Supreme Court to defend the Constitution rather than replace it on whim.

Look, I'm an opponent of the death penalty. But I don't believe for a minute that the Constitution was written in such a way to exclude capital punishment. The Fifth Amendment provides a precondition for execution, and the Fourteenth applies that condition to the states.

But, one objects,the Constitution"evolves," and thus the question of what the Founders meant does not determine what the Constitution means /toady/.

In reality, however, the Constitution does /not/ evolve. What evolves is the society to which the Constitution applies, and thus that society's understanding of the words in the Constitution change. That's inevitable.

But what we are then left with is an /epistemological/ problem: How does one KNOW what the evolving interpretation of any given provision of he Constitution is at this time? One does not have to be an Originalist or strict constructionist (I'm not) to see that there is a problem here. Is a Supreme Court justice in a good position to KNOW the prevailing "judgment" concerning the "acceptability" of the death penalty? Why?

Steven's epistemology is gnostic in this case: He knows not only what the standard is, bu where it is going. His evidence is some polls and some sociological studies, none of which speak to whether there is broad support for executing at least /some/ people who are convicted of /some/ crimes. Again, I would rather that no one be executed. But Stevens provides me with no evidence that prevailing "judgment" agrees with mine at this time.

On page four he points to the lack of a "nationwide endorsement" of one of the chemicals in question, bringing in the actions of state legislatures to support his interpretation. Yet it is equally clear that there is no nationwide endorsement of his view on capital punishment. If the chemical needs to go, so does his rather simplistic epistemology.

@A. Zarkov: Just for the record, the original Constitutional Treaty was also a treaty, and now it's been replaced by a treaty that's not a constitution. (No more flags, national anthems and other things that make it look like one. The current Reform Treaty is similar in nature to the other treaties of the last 20 years.)

As for the general topic of this thread, I think Justice Stevens could have put it better, but he's generally right. What's cruel and unusual depends on "evolving standards of decency", etc., as it was supposed to from the start. The question is, indeed, how do you know? The answer, at least since Marbury v. Madison, is that it is up to the Supreme Court to decide, in the end. If and when, in their judgement, the standards of society have evolved to the point where the death penalty is considered cruel, it will be held unconstitutional.

In that regard, I don't think the 5th amendment really matters. That amendment merely sets rules for the imposition of the death penalty to the extent that the death penalty is not forbidden by any other part of the constitution. (Cf. how the 3rd and 4th amendments both have different things to say about the government's right to disturb you in your own home. Scalia's argument is equivalent to saying that anything permitted by the 4th amendment must automatically be constitutional, regardless of what any other amendment says.)

I don't see why there's an objection to expanding out definition of just what is cruel and unusual. In fact it seems like common sense that as our understanding of the workings of the human body has increased our definition of what would be cruel would expand.

Of course that's if you don't subscribe to Justice Thomas's disgusting opinion of what cruel and unusual punishment is.

Surely a judge's own experience has some place in jurisprudence! "The life of the law has not been logic; it has been experience." Etc.

And with regard to Scalia, he has to claim agnosticism on the desirability of the death penalty. If he announces that he's personally for it or it's good for society, he creates a big issue because he's Catholic. If he announces that he's personally against it or it's bad for society but has to let the law stand, then he's close to triggering his own recusal conditions--the right legal conclusion being the wrong moral conclusion. So he is boxed in.

Of course that's if you don't subscribe to Justice Thomas's disgusting opinion of what cruel and unusual punishment is.

Justice Thomas's opinion of cruel and unusual punishment (at least with regard to the choice of drugs used to pefrom the procedure) is that it is not cruel and unusual punishment where the method utilized is not "deliberately designed" to cause pain.

Setting aside whether you believe that that is the right analysis, (and I really am trying to understand your argument on this) how is that a "disgusting opinion"?

Bama:
Just a few days ago I saw a tape of a speech that Scalia gave to some high schoolers in which he explained that while he found flag burning abhorrent, he nevertheless voted that criminal prohibitions on flag burning violate the first amendment.
Is he now required to recuse himself in all flag-burning cases?...all expressive conduct cases?

One method advanced as not vulnerable was a gas chamber using nitrogen. The article stated that nitrogen would adhere to the hemoglobin in substitute of oxygen. The scenario included no possibility of pain as consciousness would be lost far before asphyxiation.

Actually, that sounds more like cyanide, which irreversibly binds hemoglobin. Nitrogen just displaces oxygen, and interferes with the CO2 release that triggers the breathing reflex ... folks I've known in industry who passed out in Nitrogen atmospheres (used to inert vessels with flammable contents) say they dropped like a sack of cement ... only takes a few seconds to lose consciousness. Your body doesn't even try to keep breathing. Might be a good candidate for DP.

I really like Scalia's approach. All the comments that are critical of it seem like nothing more than folks trying to force their personal opinion, dripping with "holier than thou" and "I've got the moral high ground" sentiment, down the rest of our throats.

You are free to have your own opinion, but that doesn't make it good legal thinking. My opinion? Some people don't deserve to live.

"Just for the record, the original Constitutional Treaty was also a treaty, and now it's been replaced by a treaty that's not a constitution."

Only the Irish Republic has been permitted to vote on the current EU Constitution disguised as a treaty. This leaked email shows the how the government plans to deceive the voters as to the nature of what they will vote on.

"The current Reform Treaty is similar in nature to the other treaties of the last 20 years."

Which treaty of the past 20 years takes away the power of member states to set their own tax and social policies and effectively gives unelected ministers the power to rule by decree?

"If he announces that he's personally for it or it's good for society, he creates a big issue because he's Catholic."

From CNN in 2002: " Supreme Court Justice Antonin Scalia on Monday criticized his church's position against the death penalty, saying that Catholic judges who believe capital punishment is wrong should resign.

The devout Roman Catholic said after giving it "serious thought" he could not agree with the church's stand on the issue."

Prufrock, in the absence of a magisterial position on flag-burning, he probably isn't trapped between Hell and recusal. What I'm talking about is specific to a few issues on which the Catholic Church takes a position. Scalia has discussed the issues in those terms when talking to Catholic audiences.

I don't see what's wrong with a judge stating his opinion, yet following precedent. Lord knows Scalia has shared his opinion more than once.

In fact, Scalia does the same thing in First Amendment Establishment Clause cases - he says our nation was founded by "judeo-christian" principles and thus in his view, statutes and displays honoring such principles are perfectly fine. Only Scalia doesn't follow precedent, he actually dissents. Sure, he is not quite as blunt as Stevens in saying "it's my opinion" but it's not like Scalia has any sources that show the framers intended this to be a christian (or "judeo-christian" to appease the jewish lobby as christians take over the country) nation. In fact the evidence shows quite the contrary.

Scalia will decide religious cases as a Catholic, which is worse than what stevens is doing - stating an opinion about the constitutionality of something. Scalia defends his actions by saying "there is no catholic way to be a supreme court justice just like there is no catholic way to cook a hamburger" ... yet there most certainly is a "catholic way" to decide, say, an abortion or establishment clause case. The "catholic way" has nothing to do with the constitution, either.

An opinion formed on one's objective and subjective experiences and observations is FAR superior to an opinion based on religious dogma. Opinions based on religious dogma are based on faith. That means they are stupid, erroneous, asinine, pigheaded, likely prejudicial to other persons, possibly racist, and controvertible by data. Meanwhile, Stevens' observations about the death penalty are pretty much undisputed. The only question is whether those observations mean it is violative of the 8th Amendment C&UP clause (I don't think that it is).

I think it's a frankly absurd argument to say that execution must be painful to count as retribution. As much as I might say that murderers deserve to die in the same horrible ways they killed their victims, I recognize that actually doing so makes us no better than they are. But at the same time, I believe that by doing those horrible acts, some people have simply forfeited their right to continue living. Period. You can smother them with puppy kisses and rainbows for all I care. As long as they're no longer living on this earth, my desire for retribution has been carried out.

1. Certain that the death penalty is clearly constitutional, which for him as a judge is the only question that matters.

2. Critical of the magisterial position on the death penalty because he does not find it rooted in Christian tradition. He even finds it non-binding. So, despite being Catholic, he is free to reach his own conclusions.

3. Nonetheless personally neutral on the issue of the death penalty's utility and only willing to state that he does not find it immoral or unconstitutional.

4. Convinced that any judge who agrees with the magisterial position and finds the death penalty immoral must resign. This is not the magisterial position on those judges' duty and is a consequence urged by Scalia. (How convenient for him to clear the bench of death penalty opponents!)

@A. Zarkov: I'd be more than happy to explain in detail why you're wrong, but I think that would be more than a little off topic. You should, however, feel free to comment on the blog of Commissioner Margot Wallström, which is the place where I usually engage in debate about how evil the EU is or isn't. As it turns out, there are quite a few people who share your opinion.

I think so many are skeptical of Scalia's position that he doesn't take a position because it's ludicrous to consider the alternative situation facing him: that the Constitution mandates the death penalty. That argument is so laughable on its face that no member of the Court would take it seriously. Of course, the contra, that the Constitution forbids the death penalty, is taken seriously by some members of the Court.

The system in place worked just fine till judges got full of themselves and became self anoited arbitors for society.
The 8th is in place to prevent the govt from running roughshod over the people.(I consider the judiciary govt). In the context of the govt prosecuters and judges metting out punishment whithout the support of society (people). How can a sentence be considered cruel or unusual if it is enacted thru the legislative and executive branches of govt?
The example of a judge inventing a sentence of window washing a highrise is extremly illustrative to this debate. If a judge would invent this punishment, then I understand an appeal to a higher court. But if society thru its elected legislators enacted the punishment and a jury chose the punisment, any judge would have no legal standing to overturn the will of the people. What special skill or ability in imbued to a person upon recieving the title of judge that enables a judge t5o devine what is "proper" in todays society?

Personally, I support capital punishment,and I think the means of execution ought to be reasonably swift and to the point. But I really don't see the legitimacy of arguing about death by lethal injection as somehow inhumane, at least as practiced with the current three drug system. Heart attacks are painful too. Many so called natural deaths involve pain,some of it quite lengthy. Lethal injection by fast acting drug, hanging with a sufficient drop, firing squad, or the electric chair are fine with me, as long as the intent is a speedy death. What I object to is the efforts by the small moral elite to seek ever inventive ways to frustrate the will of the majority, who have indicated their support for the death penalty through the legislative process. It seems to me that if the majority truly opposed capital punishment, it would have been abolished by the legislative process long ago.

As for the general topic of this thread, I think Justice Stevens could have put it better, but he's generally right. What's cruel and unusual depends on "evolving standards of decency", etc., as it was supposed to from the start. The question is, indeed, how do you know? The answer, at least since Marbury v. Madison, is that it is up to the Supreme Court to decide, in the end. If and when, in their judgement, the standards of society have evolved to the point where the death penalty is considered cruel, it will be held unconstitutional.

I actually don't have much of a problem with that argument; the problem is that it isn't Stevens's at all, so he's not "generally right," and it isn't a matter of how he "put it."

Although we often hear about the evolving standards of decency in society, Stevens couldn't care less about society's standards. He explicitly says, and means, that what matters are his own standards, society's standards be damned.

It's one thing for the Court to try to suss out what society's standards are; it's another to dismiss them because they don't match the personal views of the judges.

But what we are then left with is an /epistemological/ problem: How does one KNOW what the evolving interpretation of any given provision of he Constitution is at this time? One does not have to be an Originalist or strict constructionist (I'm not) to see that there is a problem here. Is a Supreme Court justice in a good position to KNOW the prevailing "judgment" concerning the "acceptability" of the death penalty? Why?

I've been thinking about this a little this morning and it leads me to a question that I don't have a good answer to, that being, even if we assume that the Supreme Court is in a good position to KNOW the prevailing "judgment" concerning the "acceptability" of the death penalty, why does that lead to the death penalty being cruel and unusual?

Even if we assume that the majority of Americans are against the death penalty, there a variety of reasons why people are against the death penalty that have nothing to do with the possibility of harm to the recipient of the penalty (racial disparities, wrongful convictions, the inability to correct mistakes, etc.). In fact, I'd wager that the majority of death penalty opponents (at least in the US, I don't know if it's true internationally) oppose death penalty on grounds other than the potential of pain to the recipient. How does this fit into the 8th Amendment construct?

Purer expression cannot be found of the principle of rule by judicial fiat.

On his recent visit to U.Va., Justice Scalia fielded questions. Someone in the crowd asked a perfectly predictable (but, from the questioner's tone, clearly earnest rather than "gotcha!") question about Bush v. Gore, and Scalia responded, "Of course I have no problem with Bush v. Gore; in fact, I'm happy with it. My guy won!" He then moved on to the next question without even making a half-hearted attempt at a serious answer.

Now, clearly, he was just being flippant in response to the question. But his refusal to engage an honest, serious question about rule by judicial fiat leads me to think that he has little, if any, concern about such a system, so long as the right people are in charge.

From CNN in 2002: " Supreme Court Justice Antonin Scalia on Monday criticized his church's position against the death penalty, saying that Catholic judges who believe capital punishment is wrong should resign.

That's a poor summary of what he said, but it was abusively misinterpreted by Sean Wilentz because he doesn't like Scalia, and thus widely misreported as Scalia mixing judging and religion, when in fact he was doing the opposite.

What Scalia said was that the death penalty was constitutional, and thus (Catholic) judges who couldn't set aside their religious views on the death penalty should resign.

Although we often hear about the evolving standards of decency in society, Stevens couldn't care less about society's standards. He explicitly says, and means, that what matters are his own standards, society's standards be damned.

Interesting. In that respect, Stevens is becoming more and more like Justice Goldberg, who once famously argued that the Court should find capital punishment cruel and unusual, despite clear public opposition, because it was the Court's job to force the evolution of society's standards of decency.

Actually, I thought Justice Thomas' view was quite cogent in rebutting Justice Stevens' opinion, as well as a bit more diplomatic, in discussing Justice Stevens' concept of "evolving standards":

It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. And it is obvious that, for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or history of the Constitution, or even by a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances. In the meantime, though, the next best option for those seeking to abolish the death penalty is to embroil the States in never-ending litigation concerning the adequacy of their execution procedures.

@David M. Nieporent: I read Justice Stevens' opinion to mean what I wrote. From the context, I'd say that by "we"/"our" in many parts of his argument he means American society, such as here:

At the same time, however, as the thoughtful opinions
by THE CHIEF JUSTICE and JUSTICE GINSBURG make
pellucidly clear, our society has moved away from public
and painful retribution towards ever more humane forms
of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to
bring executions in line with our evolving standards of
decency, we have adopted increasingly less painful methods
of execution, and then declared previous methods
barbaric and archaic. But by requiring that an execution
be relatively painless, we necessarily protect the inmate
from enduring any punishment that is comparable to the
suffering inflicted on his victim.

Where he discusses the role of the judge, such as on p. 14 of his opinion where he discusses Justice White's opinion in Coker v Georgia, the question is less about the standards of society, but more about the question of excessiveness, i.e. the question whether any "social or public purpose" is served by imposing the death penalty. This is more a question of fact, where Justice White justifiably based his assessment "on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty."

I don't read Stevens' opinion as generally advocating the idea that his standards somehow trump those of American society.

You are free to have your own opinion, but that doesn't make it good legal thinking. My opinion? Some people don't deserve to live.

What happens when an innocent person is executed? With our muddled and often corrupt and incompetent legal system this is bound to happen if it hasn't happened several times already. The number of innocent people freed from death row and for other serious crimes certainly shows that this is likely the case.

And what's the retribution model for the family of the wrongly executed? I haven't heard this dicussed much by the pro death penalty crowd. I would suggest formally and humanely executing the prosecutor and one family member from the family of the victim they were wrongly accused of killing. This is hyperbole, but not by much. If you're going to engage in retributive barbarity with the possibility of being completely mistaken, you better be prepared to face the consequences of your incompetent barbarity.

As a matter of constitutional law, I don't understand how a method of punishment that is explicitly referenced in the 5th Amendment can possibly be overturned by the 8th Amendment when both were adopted at the same time. As a matter of policy, though, I think there are compelling arguments against capital punishment.

The Supreme Court overturned the death penalty in 1972 because juries lacked sufficient discretion to exercise mercy and therefore the penalty was arbitrary and capricious. These days, the jury has total discretion and the result is arbitrary and capricious.

Whether a defendant gets a death sentence these days does not usually depend on the nature of the crime. It turns on the political ambitions and abiity of the prosecutor; the ability of the defense counsel; the ability of the defendant's habeas counsel; the defendant's race and gender; and the social status of the victim, whether or not known to the defendant at the time of the crime. People who kill priests tend to get death sentences more than people who kill prostitutes.

Bama... the magesterial position which Justice Scalia was criticizing is the position, taken by at least some bishops, that a Catholic judge who imposes the death penalty, or who denies a stay of execution that it is in his judicial power to give, commits a grave sin and must therefore be denied communion. If a judge were to accept that magesterial position, and refuse to ever impose or acquiesce in the imposition of the death penalty as a result of his religious beliefs, such a judge would be violating his oath to uphold the Constitution and laws of this country. He would be breaking that oath every bit as much as would, say, a judge who ordered an abortion clinic shut down because he was religiously opposed to abortion. If your religious beliefs prevent you from following the law, you simply are not qualified to be a judge.

I am completely aghast at Stevens' position that he is free to judge whether or not the death penalty is unconstitutional based upon his own experience, and to hell with the experience or judgment of the voters, the state legislators, State Executives (who invariably have the right to commute a death sentence), or even the other Justices on the Supreme Court. All this notwithstanding that the text of the Constitution expressly contemplates capital punishment. I am even more aghast at the number of posters on this thread that think Stevens' position is an entirely proper way for a judge to rule. I'm just speculating here, but my guess is that those who think Stevens was right would overwhelmingly identify themselves as Democrats, yet they are oblivious to the irony that the elites of the Political Party calling itself "Democratic" in fact hates democracy and prefers, as Scalia so aptly put it, rule by "judicial fiat."

On his recent visit to U.Va., Justice Scalia fielded questions. Someone in the crowd asked a perfectly predictable (but, from the questioner's tone, clearly earnest rather than "gotcha!") question about Bush v. Gore, and Scalia responded, "Of course I have no problem with Bush v. Gore; in fact, I'm happy with it. My guy won!" He then moved on to the next question without even making a half-hearted attempt at a serious answer.

Now, clearly, he was just being flippant in response to the question. But his refusal to engage an honest, serious question about rule by judicial fiat leads me to think that he has little, if any, concern about such a system, so long as the right people are in charge.

Actually, Scalia met with law students earlier in the day. I witnessed a student asked him about Bush v. Gore and Scalia engaged in a 5 min. conversation with him about it.

Please point to me those "innocent" people who have been executed. Just one. By name. In his Kansas v. Marshconcurrence, Justice Scalia threw down the gauntlet on the issue. I have yet to see any of the abolitionists pick it up and demonstrate that Justice Scalia was wrong.

This trend [toward less painful methods of execution], while appropriate and required by the Eighth Amendment’s prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based.

This is patently absurd. The "very premise on which public approval of the retribution rationale is based" is that people who commit certain crimes deserve to be dead. The fact that evolving standards of decency have imposed limits on the methods we can legitimately use to bring about the deaths of these people is irrelevant. Stevens might as well declare incarceration itself unconstitutional since evolving standards of decency now limit the ability of the police and the prison guards to rough up inmates before tossing them in their cells.

"Although we often hear about the evolving standards of decency in society, Stevens couldn't care less about society's standards. He explicitly says, and means, that what matters are his own standards, society's standards be damned."

What, exactly, is wrong with that, where the framers of the Eighth Amendment used vague and subjective language that necessarily calls for the incorporation of a judge's personal intuitions into the constitutional analysis? Does anyone think that the drafters of the Eighth were such dullards as to not realize that the obvious consequence of the phrase "cruel and unusual" would be to require members of the judiciary to make determinations on the basis of their own experience as to which punishments were excessively cruel, and therefore unconstitutional? Even an originalist interpretive approach has to acknowledge that the "evolving standards" model is built inescapably into the text and has been there since the beginning. One might reasonably argue that the innate subjectivity of the Eighth Amendment is a flaw in the constitutional scheme, but Stevens's analysis does no more or less than his duty as a judicial officer to make the determinations clearly called for by the constitutional text.

Falafalafocus, perhaps I was a bit harsh about Thomas's opinion. But I did find the premise that no matter how painful or cruel a method of punishment is, so long as its purpose is not to be torturous, it is allowed under the Eighth Amendment.

Quite frankly his opinion reads as almost a bad parody of originalist thought.

It's not quite right to say that the Constitution "explicitly permits" the death penalty. The permissibility of the death penalty is actually a presupposition, which is a different phenomenon. Whether Constitutional presuppositions can be negated is a matter on which I have no particular opinion, but it's not the same thing.

Stevens position sounds to me like what the amendment calls for. It forbids "cruel and unusual punishment": not "punishment that most people find cruel," or "punishment that we founding fathers, in our era, think is cruel," but punishment that really IS cruel. If a judge thinks a punishment is, in fact, cruel, I don't see how he can honestly allow it, though the rest of the country be against him. The only way I can see letting in public opinion is on the question of "unusual," or through a cultural-relativist understanding of "cruelty."

I am surprised at some of the comments. It is true that the last pope was not a supporter of the death penalty. But, I thought, the official position of the Catholic church has always supported it. The official Catechism explicitly supports it. Has there been a change?

What, exactly, is wrong with that, where the framers of the Eighth Amendment used vague and subjective language that necessarily calls for the incorporation of a judge's personal intuitions into the constitutional analysis?

Personal intuitions? So a judge is supposed to GUESS what is constitutional, based on how he personally is feeling that day? Is this the Rule of Law or the Dating Game? Is that how you get a result that says the death penalty is not constitutional when the words of the Constitution itself expressly permit it? Or is that how you get a result that bans guns when the words of the Constitution says it's a right of the people?

Sorry. Words mean things and have a common understanding. It is flat out nonsense to say that lethal injection is cruel AND unusual.

"Although we often hear about the evolving standards of decency in society, Stevens couldn't care less about society's standards. He explicitly says, and means, that what matters are his own standards, society's standards be damned."

The problem with this is not that Stephens says society's standards be damned. That's just typical judicial arrogance from the left. It is to be expected. The REAL problem is the premise itself: evolving standards of decency. I can't find that phrase in the Constitution. The test, as described in the Constitution, is whether something is cruel and unusual. We know what was considered cruel and unusual when the Amendment was adopted. "Evolving standards" is only a way to re-word the true test into something that allows a judge to change the result to whatever he wants it to be. So of course Stephens is going to change the result - his new premise itself permits it! You have to understand that the that the premise of "evolving standards" itself is NONSENSE. The correct premise should be whether something is "cruel and unusual."

Give a mouse a cookie and he'll ask for a glass of milk. Re-word the premise from "cruel and unusual" to "evolving standards" and don't be surprised if they "evolve."

The people who outlined the idiotic "evolving standards" test are the ones who should've been impeached.

The fact that hundreds of innocent people have had their convictions reversed and are no longer on death row is not evidence in support of the accuracy of the death penalty. Many innocent people have been executed, we just don't know who they are because only in a small percentage of cases is evidence found (or preserved) which yields exculpatory DNA evidence. Even when it is, the convicted individual has to fight the state tooth an nails to get the conviction overturned - even when it's abundantly clear that no jury would convict beyond a reasonable doubt w/ the new evidence. The state will almost always argue that the newly discovered exculpatory evidence doesn't matter, or doesn't matter enough. If they lose their habeas petition, they will be executed. The state will claim a guilty person was executed. People looking for evidence of an innocent person being executed won't be able to use this defendant as such evidence, because he was "guilty."

There are plenty of people executed who have raised newly-discovered exculpatory evidence (DNA or otherwise). When the state challenges the evidence and wins, the person is still deemed to be "guilty" and thus a "guilty" person will have been executed. The state will never concede someone is innocent and execute them anyway.

As for cases of exculpatory evidence being found after an execution, it happens but there's never a hearing to determine whether the person was innocent. The case of Ruben Cantu is a good example. Without a hearing, it's only speculative that Cantu was actually innocent. So again, the state can claim a guilty person was executed. No court ever found him innocent, nor will any court ever make such a finding.

So the challenge to "name an innocent person who has been executed - just one!" is horrendously disingenous.

But I'll name one anyway. Ruben Cantu was innocent and was executed by Texas. There.

A while ago, I cited Justice Scalia's concurrence in Kansas v. Marsh and the concept of "actual innocence." I should note that Professor Cassell is an scholar in this area--and I regret that his role as a federal judge prevented him from commenting on Marsh at the time of decision.

It strikes me that judges waxing philosophical could and should be construed as disqualifing under the "good behavior" condition under which they serve. It's malpractice, plain and simple. They are supposed to be technicians, not philosopher kings.

Personal intuitions? So a judge is supposed to GUESS what is constitutional, based on how he personally is feeling that day? Is this the Rule of Law or the Dating Game? Is that how you get a result that says the death penalty is not constitutional when the words of the Constitution itself expressly permit it? Or is that how you get a result that bans guns when the words of the Constitution says it's a right of the people?

You didn't respond to my point at all. First of all, I'm not talking about the Second Amendment; my comment was restricted to the Eighth and specifically to the inherent and likely intentional subjectivity of the phrase that the framers of that amendment incorporated as the substantive legal criterion. Second, for the record, I agree with the comments above that the references to deprivation of life in the Fifth and Fourteenth Amendments do not resolve the matter because those amendments simply impose upon the state the obligation to provide due process for deprivations that are otherwise constitutional, saying nothing about whether any particular deprivation of life or liberty is or is not a violation of the Eighth Amendment. I realize that that is perhaps a controversial point but it isn't where my comment was headed. The point I was making, again, is that where the plain text of the Constitution expressly uses a subjective term like "cruel and unusual" as a legal standard, there simply is no distinction between the "rule of law" and the application of a judge's personal intuitions-- because the text of the Constitution makes those intuitions relevant. This is not a wholesale endorsement of the living Constitution model, but simply a recognition that, within the unique confines of Eighth Amendment jurisprudence, even a textualist should acknowledge that a judge's personal view of which punishments are "cruel" must be given some legal weight.

Anyone would think, reading this thread, that Stevens voted *against* permitting death by lethal injection.

In fact, he voted to get the execution machine rolling along again. Read the freakin' syllabus, if paragraphs are too hard for you:

Moreover, although experience demonstrates that imposing that penalty constitutes the pointless and needless extinction of life with only negligible social or public returns, this conclusion does not justify a refusal to respect this Court’s precedents upholding the death penalty and establishing a framework for evaluating the constitutionality of particular execution methods, under which petitioners’ evidence fails to prove that Kentucky’s protocol violates the Eighth Amendment.

Putting aside his personal opinions to rule in accordance with the law -- isn't that what the "conservatives" at this blog favor?

But no. Your triumphalism is such that no one is supposed to even personally disagree with you. And then you wonder why people call you "wingnuts."

much like the emanations and penumbras nonsense, the evolution of cruel and unusual punishment reaches the point where it actually negates the letter of the Constitiution. Is that actually what is being advocated?

I think both of those would probably count as implicitly permitted. "Explicitly permitted" seems like a bit of an overstatement. Lots of times in legal argument people use the word "explicit" when they really shouldn't, and I think Scalia made that mistake here.

If you read "The Death of Innocents" by Helen Prejean she presents a compelling case that both Dobie Gillis Williams and Joseph O'Dell were wrongfully executed. Additionally, statistically speaking the number of people released from death row based on DNA evidence suggests that prior to the evolution of modern DNA testing at least a few innocent people were executed and further even today not every capital conviction involves DNA evidence.

If you want to support the death penalty that is your decision, but do not lie to yourself that innocent people won't be killed in the process.

The constitution is a rein on the govt. Cruel and unusual as forced on the people thru police,prosecuters,judges. These people that are for the most part out of the control of the people. Criminal punishment enacted thru the legislature and the exectutive branch are by deffinition not cruel and unusual per current societal standards. Where do 5 judges opinions overule the majority of the elected representatives? What criteria are judges going to use as societal standards other than free elections of the people? The system may be a bit cumbersome but it is far superior than some needle headed judge running amok.

Bruce M: "An opinion formed on one's objective and subjective experiences and observations is FAR superior to an opinion based on religious dogma. Opinions based on religious dogma are based on faith. That means they are stupid, erroneous, asinine, pigheaded, likely prejudicial to other persons, possibly racist, and controvertible by data."

Ok, buddy. Let's "compare and contrast":

Years of Experience:

*Catholic Church-1900+
*JPS-87

Number of People Doing the Experiencing:

*Catholic Church in US--@70 million
*JPS-1

I think that the RC Church can claim a broader, richer base of experience than can Mr. Justice Stevens. So I'm not certain how you've come to your list of adjectives. It strikes me that all of them could be applied to the opinions of an INDIVIDUAL with whom you disagree, and not just a religion against which you are a raving bigot.

Since those personal opinions are "FAR superiror", in your mind, to those of an ancient religion, could you tell us HOW you know whose opinions are intelligent, accurate, wise, moist, and all other things you admire in opinions? I mean, what happens when people disagree? On what do you base YOUR opinion? And how do you know YOU aren't wrong?

No, Anderson, our problem is with a judge who feels free to say that all the laws enacting the death penalty by the vast majority of states in this country (including places like New Yorkw which had once abolished it) are the product of "the product of habit and inattention rather than an acceptable deliberative process."

In making that statement, Justice Stevens insults every person who supports the death penalty, every legislator that voted for it. He felt free to insult us, so why shouldn't we point out his deficiencies in return.

Yes, it is to his credit that he voted for the proper outcome of the case. Personally, I suspect his respect for precedent in this case is tactical, in hopes of staving off an overturning of Roe v. Wade.

Anderson, you neglect to mention Stevens' conclusion that the death penalty is unconstitutional. Are you translating this conclusion as "personal opinion"? I suppose that would be technically true, but contrary to customary usage. Can't people debate his conclusion that the death penalty is unconstitutional, especially when he recognizes that the issue will come up in future cases?

Initially, I just wondering what Justice Scalia was referring to. Assuming he's just referring to the Fifth and Fourteenth Amendments, as you and Q suggested, then I'm mostly just accusing him of a bit of overstatement and poor grammar.

Does it have any impact on the legal analysis? I don't know. I guess it might.

If there were an explicit Constitutional provision that said "Imposition of the death penalty does not violate the Constitution, and no provision of this Constitution shall be construed to invalidate the death penalty," I think the legal analysis might be a little different in at least some cases.

If Stevens considers the death penalty unconsitutional*, how can he write a concurring opinion?

*titus32:4.17.2008 12:04pm
"Anderson, you neglect to mention Stevens' conclusion that the death penalty is unconstitutional. Are you translating this conclusion as "personal opinion"? I suppose that would be technically true, but contrary to customary usage. Can't people debate his conclusion that the death penalty is unconstitutional, especially when he recognizes that the issue will come up in future cases?"

BruceM accepted my challenge and named Ruben Cantu as an innocent who was possibly executed. The Bexar County District Attorney conducted an investigation in 2006 and released a lengthy report, found here.

Out of fairness, various groups convinced of Cantu's innocence have criticized this report, but their criticism appears to be procedural (e.g., the district attorney had a conflict) and not substantive.

"Can't people debate his conclusion that the death penalty is unconstitutional, especially when he recognizes that the issue will come up in future cases?"

It's difficult for us to debate it, given that he grounds his view in his own feelings rather than the law. Of course after nearly half a century on the SCOTUS, I doubt he even rembers the difference beteen the two.

What happens when an innocent person is executed? With our muddled and often corrupt and incompetent legal system this is bound to happen if it hasn't happened several times already. The number of innocent people freed from death row and for other serious crimes certainly shows that this is likely the case.

So, we shouldn't punish criminals because the system is imperfect? Your arguments apply just as well to any criminal sentence, not just capital ones. Lost time is no different that shortened time.

And what's the retribution model for the family of the wrongly executed? I haven't heard this dicussed much by the pro death penalty crowd. I would suggest formally and humanely executing the prosecutor and one family member from the family of the victim they were wrongly accused of killing. This is hyperbole, but not by much. If you're going to engage in retributive barbarity with the possibility of being completely mistaken, you better be prepared to face the consequences of your incompetent barbarity.

So we're holding prosecuters personally responsible for convictions? Why not judges and juries too? Or society? Let's pick someone at random from the phone book. The consesquences of our "retributive barbarity" is that the state gets to say where responsibility ends, even for errors in the judicial system. I'm good with that.

The alternative is no judicial system at all ... and if you want retributive barbarity, you ain't seen nothin' yet.

So, if some gets convicted, later released as wrongly convicted, and then confesses ... do we get to put you and one of your family members humanely to death?

Such squeemishness. So if we could achieve the impossible and have a criminal justice system that never makes a mistake, do you THEN support the death penalty? That's the real issue. The whole production about conviction errors is just a PR wedge by the anti-DP crowd. They really don't care ... it's just a way to undermine the basic concept.

And I object to being called an incompetent barbarian. I'm actually quite competent.

If Stevens considers the death penalty unconsitutional*, how can he write a concurring opinion?

My take is that he is relying on stare decisis. The Court has said (even in constitutional cases, such as abortion cases) that stare decisis should restrain a Justice's conclusion that precedent is wrong.

In short, Stevens disagrees with y'all on the death penalty, but considers himself bound by precedent on the subject.

Like I said.

Section I: he gives what he intends as helpful advice to the states to FACILITATE their executions.

Section II: he expresses skepticism about the quality of reasoning behind legislative enactments authorizing the death penalty. So now, VC commenters think that legislatures are stocked with deliberative geniuses? Your favorite branch of the federal government is now Congress? Or do you think that state legislators are even smarter?

Who is the _____ up above who said, "it's not about retribution, it's about killing people who deserve it"? Must be a state legislator.

Section III: for reasons that you may or may not find persuasive, but which are certainly stated plausibly and colorably, Stevens decides that, according to HIS OWN experience, the death penalty AS APPLIED violates the Eighth Amendment. N.b. especially his observation that the LAST thing a capital prosecutor wants is a jury of 12 randomly selected people.

Section IV: Stevens REJECTS reaching a constitutional holding on the basis of his own experience, and decides that he must rely on precedent.

That seems to me like a freakin' case study in how a "conservative" would want a jurist to rule, where the jurist's personal opinions and experience conflict with the case law.

where the plain text of the Constitution expressly uses a subjective term like "cruel and unusual" as a legal standard, there simply is no distinction between the "rule of law" and the application of a judge's personal intuitions-- because the text of the Constitution makes those intuitions relevant. This is not a wholesale endorsement of the living Constitution model, but simply a recognition that, within the unique confines of Eighth Amendment jurisprudence, even a textualist should acknowledge that a judge's personal view of which punishments are "cruel" must be given some legal weight.

Must be given legal weight? No. A Judge's personal preferences should have no weight in determining the meaning of words in the Constitution. The only determining factor of words in the Constitution should be their original understanding by the people that enacted them. I don't know if that's "textualism" or "originalism," but it's the only way to guarantee that the democratic process of enacting Constitutional Amendments doesn't become corrupt by the rule of judges over the elected. A judge who gives weight to his personal view of what constitutes "cruel" is a BAD JUDGE.

Does this happen? Yes. I'll acknowledge that it happens. It shouldn't. I'll also admit that, as they say, back in the day, this wasn't much of a problem because most judges understood that their personal preferences were irrelevant. But nowadays, you have kids graduating law school who like Bill Clinton think it's right to parse the meaning of the word "is", that words can be re-defined to suit the meaning of the speaker based on deconstructive analysis, and that the role of a judge is to engage in legal realism power politics. If you want a future where you give an inch on this process, you'll end up getting a mile.

As an aside, Justice Scalia's opinion makes no sense, and I very much wonder whether Stevens was originally going to dissent &then reconsidered at the last minute, adding section IV.

If Stevens were originally going to dissent, then that would make sense of Scalia's "Purer expression cannot be found of the principle of rule by judicial fiat." But in fact, Stevens expressly rejects exactly that.

I wonder whether Nino was so in love with his rhetoric that he couldn't bear to take it down, after a Stevens flip? Time will tell, perhaps.

Dave N: You're proving my point. The state will never admit it executed an innocent person. Why should it? A court will never hear the evidence to make a determination of innocence after the guy is executed. Thus, the state will always contest the actual innocence, and will issue press releases saying why the exculpatory evidence is not sufficient, accurate, correct, relevant, etc.

I still contend that Cantu is innocent. But as long as the state says he's guilty and no court is going to have an evidentiary hearing on the matter, the "fact" that a guilty person was executed will remain to defend the state's actions.

What would I have to show in order to prove that an innocent person was executed? Clearly I need more than to just show newly-discovered exculpatory evidence that the original jury didn't consider. I need some sort of official finding of innocence. I'll never have that. Courts dont normally issue advisory opinions, and even if they would, they wouldn't touch this with a ten foot pole. So I still contend the 'challenge' is disingenous.

And with regard to Scalia, he has to claim agnosticism on the desirability of the death penalty. If he announces that he's personally for it or it's good for society, he creates a big issue because he's Catholic.

and

It is true that the last pope was not a supporter of the death penalty. But, I thought, the official position of the Catholic church has always supported it. The official Catechism explicitly supports it. Has there been a change?

There's a bit of a factual void here. The Catholic position on the death penalty, as set forth in the Catechism of the Catholic Church, is actually rather nuanced:

2267 Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.

Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically non-existent."

Frankly, this is a pretty good practical argument providing collateral support for the "evolving standards of decency" analysis generally, if not Justice Stevens' views. Bottom line: If the penal system has evolved to the point where it's no longer necessary to execute someone to guarantee that society is permanently protected from him, then don't do it. And you'll notice the lack of any mention of any retribution justification.

If Stevens were originally going to dissent, then that would make sense of Scalia's "Purer expression cannot be found of the principle of rule by judicial fiat." But in fact, Stevens expressly rejects exactly that.

Another person who pays all of the attention to the final outcome, none to the reasoning. Scalia was referring to Stevens' reasoning.

Stevens REJECTS reaching a constitutional holding on the basis of his own experience, and decides that he must rely on precedent.

I don't agree with that interpretation. Stevens accepts the constitutionality of the death penalty here only because that issue wasn't before the court. I think he makes it pretty clear that if the case were about the DP itself and not just the method he would NOT rely on existing precedent.

Does anyone think that the drafters of the Eighth were such dullards as to not realize that the obvious consequence of the phrase "cruel and unusual" would be to require members of the judiciary to make determinations on the basis of their own experience as to which punishments were excessively cruel, and therefore unconstitutional?

I'm not sure this is true. You may be projecting the experience of a couple hundred years of judicial review onto the drafters. How jurisprudence would develop in later years may not have been foreseen by those working at the beginning of the first democratic republic.

I find it entirely plausible that the drafters (or some portion of the Congress that approved it) thought it perfectly clear that the 8th prohibited what they considered cruel and unusual from English law and nothing else. I've read some quotes from Jefferson that might point to an evolving constitution but not enough to be conclusive about the 3rd president's opinion, let alone everyone else involved.

I think both of those would probably count as implicitly permitted. "Explicitly permitted" seems like a bit of an overstatement. Lots of times in legal argument people use the word "explicit" when they really shouldn't, and I think Scalia made that mistake here.

Precisely. Its being permitted is presupposed, not explicitly stated. I think it's possible, and not particularly unreasonable, to argue that we're not bound by Constitutional presuppositions when they conflict with its explicit statements. The argument would be that the death penalty is in fact cruel and unusual; therefore the presupposition is false; therefore it is not binding. I have no particular opinion on this argument.

I'm much more interested in the theoretical issue (are Constitutional presuppositions conclusively binding when they conflict with the explicit text?) than in the death penalty issue, because any possible problems with the death penalty strike me as trivial compared to the fact that our prisons are barbaric hellholes. The fact that gang rape, sex slavery, abuse by guards, and the like are considered Constitutional even though they are much crueler than the punishments considered "cruel and unusual" and are administered for reasons having nothing to do with the crime the prisoner was convicted of is just preposterous.

Must be given legal weight? No. A Judge's personal preferences should have no weight in determining the meaning of words in the Constitution. The only determining factor of words in the Constitution should be their original understanding by the people that enacted them. I don't know if that's "textualism" or "originalism," but it's the only way to guarantee that the democratic process of enacting Constitutional Amendments doesn't become corrupt by the rule of judges over the elected. A judge who gives weight to his personal view of what constitutes "cruel" is a BAD JUDGE.

You're simply insulting the intelligence of the framers of the Eighth Amendment, who knew perfectly well that the use of a vague and subjective textual standard like "cruel and unusual" would invite--indeed, necessitate-- an application of the judge's own understanding of those terms to the law. There's simply no other way to read those words, and more to the point, both the text and the "original understanding," to the extent that we have any way of discerning such a thing, seem to demand that approach. Do you think the framers were unaware of the fact that members of the judicial branch would necessarily be compelled to apply their own understanding of "cruelty" to the application of the Eighth Amendment? The framers weren't idiots; they could have been more specific had they chosen to do so, and they were well aware of the fact that by incorporating such an abstract principle into the constitutional fabric they were delegating much of the development of Eighth Amendment jurisprudence to the personal convictions of future generations of jurists-- and entrusting those jurists to apply that abstract principle prudently and in good faith. Again, perhaps the framers deserve some criticism for leaving so much interpretive space available, but I can't see a basis for criticizing Justice Stevens for discharging the duty imposed upon him to interpret the text of the Constitution in good faith.

I'm a hard-core retributionist, and feel no need to apologize for it. The notion that a punishment for cruel, heinous and depraved acts of murder should be an act less painful than a spanking is beyond ludicrous. As Justice Stevens' opinion correctly observed, broad public support for the death penalty is largely based on a straightforward belief that anyone who commits a murder sufficiently heinous to warrant the death penalty SHOULD suffer pain during the execution. I find it strange that "evolving standards of decency" has somehow come to refer to the namby-pamby inanity of a Supreme Court justice, who openly recognizes that the governed masses have a completely different view about what's "decent."

This highlights the biggest reason I can no longer support the death penalty as it now exists. I think the battle for principled, rational application of it has already been lost. The American judiciary has proven that it is incapable of administering this level of justice in any way that makes sense. The result is that those who truly deserve to die a painful death are likely as not to be spared the penalty at all. The bottom like likelihood that the penalty will be imposed on those who deserve it or don't has gone to the level of coin-flipping.

You may be right; I'll concede that my view of the framers' understanding of what they were doing is based largely on my own assumptions-- as much of the debate about original intent often tends to be. I hope they weren't so naive as to misunderstand the risk inherent in applying such a vague and subjective standard as "cruel and unusual" if they really didn't intend for an "evolving standards of decency" test to develop. Still, I think the textual argument holds even if the originalist one does not.

This isn't my field, but BruceM and ratel have provided responses that were on point. The significant amount of people getting released from death row is evidence enough for me, especially since the rate at which this is occurring has increased since DNA evidence has become available. Imprisoning people who are innocent is horrible enough, the prospect of executing people who are innocent is unconscionable.

PatHMV said:
FYI to the guy who asked, the 14th Amendment also explicitly permits the death penalty: "nor shall any state deprive any person of life, liberty, or property, without due process of law;"

The necessary corollary to that is that the state MAY deprive a person of life WITH due process of law.

Actually, as a matter of formal logic, that isn't true. It would only be correct if there were no other requirements, but since there are, they all have to be met before the death penalty is permissible. (I.e. the requirements are independent of each other, and additive.)

The structure is essentially:
No death penalty:
- If it is cruel, or
- If it is unusual, or
- If there has been a failure of due process.

Turning that around yield:
Yes death penalty:
- If it is not cruel, and
- If it is not unusual, and
- If there has not been a failure of due process.

(Whether cruel and unusual is one criterion or two is not the point here, my point is how the "or" in the first series becomes and "and" in the second.)

My point is that someone claiming actual innocence should carry the burden of proving it. In other words, a jury has already been convinced beyond a reasonable doubt of a person's guilt--those who want to undermine that verdict should carry the heavy burden of overcoming that verdict.

With respect to Ruben Cantu, it is interesting that on direct appeal, an issue was whether he could testify at his penalty hearing regarding another bad act and not be cross-examined about the murder for which he stood convicted. That, in itself, is rather an odd position to take at trial for someone who is "actually innocent."

An addition to my earlier response to Anderson: I do respect Stevens for concurring on the lethal injection issue rather than finding some excuse to outlaw LI because he thinks the DP is unconstitutional. I also respect his honesty even though I find his reasoning about the DP to be wrong.

I hope they weren't so naive as to misunderstand the risk inherent in applying such a vague and subjective standard as "cruel and unusual" if they really didn't intend for an "evolving standards of decency" test to develop.

Even if they were completely naive (from the modern perspective) it's hard to fault those who were trying to invent and codify a new system of government for not foreseeing all possibilities. Overall the Framers did a great job and deserve our respect and admiration. But they were mere mortals.

I'm always open to change my mind with additional facts, but you can't get around the fact that the EU Constitution was repeatedly voted down. And now with the exception of Ireland, they don't get a chance to vote on the treaty.

The blog of an EU Commissioner hardly seems like an objective forum to get the facts about the Treaty of Lisbon. I simply don't trust the EU organs to provide an uncensored forum.

DangerMouse wrote "Personal intuitions? So a judge is supposed to GUESS what is constitutional, based on how he personally is feeling that day?" No, an adult Judge has many years of experience to draw from in understanding the meaning of the word "cruel" and that understanding would not change much from day to day, except in response to evidence related to a given punishment and its cruelty or lack thereof.

"It is flat out nonsense to say that lethal injection is cruel AND unusual." That is not a legal argument.

martinned, you're incorrect. The fact that the 14th Amendment (and the 5th) specifically contemplate the death penalty is proof that the death penalty was not "cruel and unusual" as the phrase was used at the time of enactment of the Constitution. A fundamental principle of statutory construction is that one should not interpret one provision of a law in such a way as would render another provision of the same law superfluous and without effect. If the death penalty, itself, is "cruel and unusual" as that phrase is used by the 8th Amendment, then it would be superfluous of the 14th Amendment to prohibit deprivation of life by the state without due process of law, because there would be NO circumstances in which the state could deprive someone of life, even with due process of law. Similarly with the 5th Amendment.

The only way your analysis works is if we assume that the Framers actually intended "cruel and unusual" to be a sliding scale referencing current social thinking by a political minority of the nation (because the social thinking of a political majority of the nation is what ends up being enacted into law through the democratic process).

But if that were the case, the Framers were exceedingly circumspect in spelling that out.

No, an adult Judge has many years of experience to draw from in understanding the meaning of the word "cruel" and that understanding would not change much from day to day, except in response to evidence related to a given punishment and its cruelty or lack thereof.

I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here.

Oh good grief. Yet another person who spent a small fortune in law school for the purpose of parsing ancient texts rather than participating in the pursuit of justice and personal liberty.

Camus said it was the job of thinking people not to be on the side of the executioners. But he wasn't on the East Coast in the late 18th century Philadelphia.

perhaps if Scalia somehow opined that a state that did not have the death penalty should, by judicial fiat based on his personal opinions, be forced to have it, damn the legislature and citizenry, the comparison with Stevens might be apt.

So, we shouldn't punish criminals because the system is imperfect? Your arguments apply just as well to any criminal sentence, not just capital ones. Lost time is no different that shortened time.

No, wrongful execution is worse than wrongful imprisonment. I would break it down like this:

Wrongful Execution:
- Irreversible once carried out
- Unreviewable once carried out(meaningful review, that is)
- Uncompensable once carried out

Wrongful Imprisonment:
- Partially reversible if prisoner is living
- Reviewable while prisoner is living
- Compensable if prisoner is living

So with wrongful imprisonment there is a longer period of time where the error might be corrected and meaningful correction is still possible. With wrongful execution the screw up is monumental and forever. But it's good if the goverment wants to bury, literally, it's mistakes.

So we're holding prosecuters personally responsible for convictions? Why not judges and juries too? Or society? Let's pick someone at random from the phone book. The consesquences of our "retributive barbarity" is that the state gets to say where responsibility ends, even for errors in the judicial system. I'm good with that.

As I acknowledged in the post it was hyperbole. But it was a smack against retributionists as far as capital punishment is concerned. It's idiotic to have a situation where you might be using the government to commit an irreversible, unreviewable atrocity against an innocent person. Then where do they go for "retribution"?

But I also think there should be more liability in general for prosecutors and judges, both civilly and criminally. The Duke Lacrosse case illustrated that.

Such squeemishness. So if we could achieve the impossible and have a criminal justice system that never makes a mistake, do you THEN support the death penalty? That's the real issue.

Well that's a hypothetical that requires supernatural omniscience, so it's a little out there. I don't think you could ever be certain, so I would probably still not support it. There's still the possibility of corruption in addition to error. With the right parties involved a corruptly built case could appear mistake-free.

The whole production about conviction errors is just a PR wedge by the anti-DP crowd. They really don't care ... it's just a way to undermine the basic concept.

Possibly, but that's not where I come from. As a libertarian I find it's the strongest argument among others that cinches it.

And I object to being called an incompetent barbarian. I'm actually quite competent.

Well that comment was in the context of the hypothetical. In the context of the hypothetical an innocent person was being executed, so that tends to indicate the individuals being referred to were not too competent. As far as barbarians go, if the horned helmet and fur-trimmed boots fit, wear them.

Pursuit of Justice and Liberty-the majority of people in this country would likely find it perfectly just to execute someone who murdered another. more states feel it is just than states feel it is unjust.

Guest 101 : I will add to your point by noting the way that the Sup Ct handles 4th amendment "reasonableness" issues. Generally, they rely on precedent or some test to determine what is "reasonable." But sometimes there is no precedent and it becomes an issue of first impression - such as when new technology comes out that allows law enforcement to do something previously they could not and which the founders could not possibly have anticiapted. And what is "reasonable" under the 4th amendment then is and only can be what the Justices decide is "reasonable."

Not surprisingly, the same people who bitch about your point regarding the 8th amendments "cruel and unusual" phrase utter nary a peep when it comes to granting law enforcement new powers to search and seize so long as the Sup Ct decides the tactics employed are "reasonable" to them.

As to one other point brought up in this thread, i practice criminal law for a living. If anyone honestly thinks no innocent people have been executed by the State they are highly delusional. Ditto for the studies claiming the death penatly is a meaningful deterrent. I call BS on those. There are also studies claiming marijuana is more dangerous than meth, heroin and cocaine combined. Got lots of money? You can purchase a study that will say whatever you want it to say. As the federal government in its marijuana "studies" has consistently shown.

I am curious though if anyone has looked at the data in State's that have outlawed the death penatly and the corresponding effect on the murder rate. Assuming the death penalty is a deterrent, removing the death penatly is an incentive and hence, murder rates will go up? This misses one of the major lessons learned by criminal practitioners early on - that most defendants when planning a crime rarely think they will ever get caught and hence dont even bother to consider what the potential penalty might be.
That would require use of things like intelligence and foresight. Not your average criminal defendant's strong suit, to say the least.

So with wrongful imprisonment there is a longer period of time where the error might be corrected and meaningful correction is still possible.

And for that correction to be meaningful for the "but you might kill the innocent!" argument, that hypothetical correction would have to take place about 11 years after the conviction... which is vanishingly unlikely, barring a similarly unlikely second revolution in technology that can retroactively prove innocence like the introduction of DNA testing was.

Hint: Lifers would have exhausted their appeals after 11 years, too. Do you have proof that lifers commonly get found innocent after 11 years, or will you admit that this is a "how many angels can fit on the head of a pin" wild hypothetical whose only purpose is to provide talking points?

You have a strong argument about the death penalty being a deterent to crime. But To play devils advocate. I dont care if its a deterent or not. I want punishment. So while your argument is sound it means nothing to me. For detering is not my goal.

Stevens accepts the constitutionality of the death penalty here only because that issue wasn't before the court.

Please quote the words from Stevens' opinion where he says that. Thanks!

From p. 17 of Stevens' concurring opinion:

I have relied on my own experience in reaching the conclusion
that the imposition of the death penalty represents “the
pointless and needless extinction of life with only marginal
contributions to any discernible social or public purposes.
A penalty with such negligible returns to the State [is]
patently excessive and cruel and unusual punishment
violative of the Eighth Amendment.”

Then the following paragraph (section VI):

The conclusion that I have reached with regard to the
constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not,
however, justify a refusal to respect precedents that remain
a part of our law. This Court has held that the
death penalty is constitutional, and has established a
framework for evaluating the constitutionality of particular
methods of execution. Under those precedents,
whether as interpreted by THE CHIEF JUSTICE or JUSTICE
GINSBURG, I am persuaded that the evidence adduced by
petitioners fails to prove that Kentucky’s lethal injection
protocol violates the Eighth Amendment. Accordingly, I
join the Court’s judgment.

He is clearly saying that he believes the DP violates the 8th amendment. The implication is that he would rule this way if the question were before the court. But he won't find lethal injection is a violation because the method is acceptable (following precedents) as long as you presuppose that the DP itself is constitutional.

You picked the wrong example. The people did want to go to war in Iraq, Our representatives voted on it. Our representatives have continued to vote on it thru 2, and soon to be 3 election cycles. Congress controls the $. Again, It might be a slow process but its better than being ruled by unelected judges

Pursuit of Justice and Liberty-the majority of people in this country would likely find it perfectly just to execute someone who murdered another. more states feel it is just than states feel it is unjust.

And no one would find it just to execute an innocent person. The problem is that they likely already have and will continue to in the future if capital punishment continues. The price of error is so high that it is basically immoral to continue when one knows innocent people will be executed over time.

(1) We weren't talking about a hypothetical innocent person ... by your own admission, we can never be sure. So we're talking about a potentially innocent person, who's had due process, and umpteen appeals. Someone is more likely to die of old age on death row. (Note: we're past the trial stage here ... no presumption of innocence anymore.)

(2) Shortened life in prison versus shortened life ... Clearly an matter of personal preferences. No meaningful difference, as far as I'm concerned. You see a difference, and your lists all concern when there is an error. Not otherwise. Like I said, I think at this stage you have the burden of proof.

(2) You say "retributionist" like it was a bad word. There is the inherent fault in our two different planes of reality. Retribution implies you have the right target for your retribution. It's the utilitarian who doesn't care whether they have the right person.

(3)The wedge faux issue. "that's not where I come from" Oh, come now. You're being disingenuous. That's exactly where you're coming from. You just admitted it in the previous paragraph. No system will satisfy you, no matter how perfect.

Any system implemented by man will have flaws, be corruptible, and make mistakes. To allow that to prevent us from trying to remove some of the most brutal, evil, and criminal elements from our society permanently is to allow ourselves to be paralyzed by over-analysis and second-guessing. It is a recipe for utter failure of society.

Most people that I know and respect have seen enough real life to understand that some people just don't deserve to live. You either have an incredibly magnanimous heart, or live in an ivory tower. If it's the former, that's fine, but I don't concede you the right to put my family in jeopardy by allowing those people to run loose. (And if you just put them in prison, there is always the chance they'll get out.) If it's the latter, may the gods help you. I'd recommend going and talking to a psychopath. Death row is full of 'em.

Significant amount? Where are you getting THAT from? Please tell me you aren't counting people being re-sentenced to life or some other slight of hand...

A handful were mentioned in some of the responses above, I suspect there are more. But a handful's enough for me. It's immoral to let a process continue where innocent people are likely to be executed. It's asinine.

You picked the wrong example. The people did want to go to war in Iraq, Our representatives voted on it. Our representatives have continued to vote on it thru 2, and soon to be 3 election cycles. Congress controls the $. Again, It might be a slow process but its better than being ruled by unelected judges

The people have since turned on it. In any case Congress very often does not represent the majority on many issues. You can claim that since they are elected, they do, but that isn't the case. I suspect in some cases they only had two pro-war candidates to choose from.

And one function of the judiciary is to act as a countermajoritarian force - to protect individuals and their rights from the tyranny of the majority. That is an important function. Not that they always do, but that's what in theory is supposed to happen.

American Psikhushka -
I just caught this as I posted my other reply ...

"The price of error is so high that it is basically immoral to continue when one knows innocent people will be executed over time."

See. A fundamental disagreement in philosophy. Neither of us will "win" this, because we have very different value systems. Your math doesn't add up to me, and visa versa.

You apparently think that human life is some precious resource. (Hmmm, I wonder what your stand on abortion is? Never mind! Sidetrack ...) One thing humans are good at doing is killing each other. It's practically a genetic trait. Innocent people get killed/murdered all the time. Usually (excluding governmental perogatives) by the guys you think shouldn't be executed.

The price of error ... is high to the guy wrongly convicted, but negligible to society or to most of the rest of us barbarians. And if we get enough of the guilty ones, its all worth while, because its a net benefit to me. (Call it pragmatic libertarianism). Morality only requires that we make a good faith attempt to get the right guy convicted and executed, not that we do so without error.

American Psikhushka-
And no one would find it just to execute an innocent person. The problem is that they likely already have and will continue to in the future if capital punishment continues. The price of error is so high that it is basically immoral to continue when one knows innocent people will be executed over time.

The problem is that we generally do not know when a judicial mistake has occured. Human institutions are not infallible and human beings are not omniscient. That's why laws aim at the abstract. We try to devise a system that will ensure defendents a fair trial, and not worry about a possibility a mistake can occur in a partucular case, despite all the rules of the fair trial are observed. The institutions just cannot be run on a constant self-destructing fear of error and Buridan-donkey-like indecisiveness

Who is the _____ up above who said, "it's not about retribution, it's about killing people who deserve it"? Must be a state legislator.

The thing that people, including me, were taking issue with was the concept that retribution must include torture to be valid. Stevens said that because our methods have evolved to make execution essentially painless, we cannot be satisfying the goal of retribution because the condemned is not suffering. There's a huge difference between the two. I have no need to make someone suffer to satisfy retribution, which is why I don't care if someone argues that life in prison is a worse punishment because they're suffering emotionally the whole time. Removing someone from the world who needs to be removed is a perfectly valid retributive goal, whether or not pain is involved.

For those who've been arguing against the death penalty due to the possibility of executing an innocent person, what do you feel about the circumstances where there's absolutely no doubt that the person did the killing? I've seen a number of capital trials where the defense put the prosecution to its burden but never actually contested that the defendant did it, the defendant admits he did it, and the only question is whether the death penalty should be imposed or not. (In Texas, whether he'll be a future danger or if there's sufficient mitigating circumstances not to impose it.) That would seem to negate the argument, but I never hear any death penalty advocates agreeing that those guys should be executed.

We weren't talking about a hypothetical innocent person ... by your own admission, we can never be sure.

Well we can be more close to sure in some situations, like when evidence shows it was impossible to commit the crime because they were somewhere else.

No meaningful difference, as far as I'm concerned.

Something tells me it would make a difference to you if it was you that was falsely convicted of a crime.

Like I said, I think at this stage you have the burden of proof.

Already met, there have been people that have been released from death row. So it does happen and is likely to happen again.

Retribution implies you have the right target for your retribution.

And we already know that mistakes happen, so at least in some cases you will be carrying out retribution on innocent people. Perhaps that's acceptable to you, it isn't to me.

The wedge faux issue. "that's not where I come from" Oh, come now. You're being disingenuous. That's exactly where you're coming from. You just admitted it in the previous paragraph. No system will satisfy you, no matter how perfect.

No, I said that the possibility for error is one of the main reasons I oppose capital punishment. You said it was an ancillary, wedge issue for the liberal death penalty opponents, and it may be. But for me as a libertarian it is the main issue, among others.

To allow that to prevent us from trying to remove some of the most brutal, evil, and criminal elements from our society permanently is to allow ourselves to be paralyzed by over-analysis and second-guessing.

Not at all. Life imprisonment does the same thing with the possibility that errors can still be corrected, reversed, and compensated.

It is a recipe for utter failure of society.

Yeah - dogs and cats, sleeping together, like in Ghostbusters. Real apocalyptic stuff. Except that a lot of other countries don't have the death penalty and they don't seem to have collapsed into anarchy yet.

Most people that I know and respect have seen enough real life to understand that some people just don't deserve to live.

That sounds pretty psychopathic itself, we might need to get you evaluated. But save the lecture, I've seen more than my share of dangerous fruit loops.(And a frighteningly high percentage of them are well dressed and/or degreed.) In any case no matter how many psychos are running wild it is not a justification to risk executing innocent people.

I am about as pro-DP as they get, but I think a few procedural changes could vastly reduce the risk of error. For example, I think that a death sentence should not be imposed if the conviction is based only on eyewitness identification without at least some "hard" evidence.

Yeah - dogs and cats, sleeping together, like in Ghostbusters. Real apocalyptic stuff. Except that a lot of other countries don't have the death penalty and they don't seem to have collapsed into anarchy yet.

Except that you purposefully miss the point - he was saying that if you apply your DP train of thought to all punishments, that WOULD be "collapse of society" stuff. He did this to show that you are using a far-out standard of proof that no one would use except as a selectively dishonest attack on one part of the system for political purposes.

Again, cite all these acquittals after 11 years(average DP wait till execution) or admit that they almost never happen.

And one function of the judiciary is to act as a countermajoritarian force -;

Funny I thought the purpose of the judiciary was to see that laws were constitutional. Not as a damper on the force of the majority. For I see nothing wrong with the force of the majority as long as constitutional restraints are observed.

But back to the debate at hand, I see nothing for the judiciary to concern themselves with. Cruel and unusual should be defined by the people, not judges

American Psikhushka -
>i>I've seen more than my share of dangerous fruit loops.(And a frighteningly high percentage of them are well dressed and/or degreed.) In any case no matter how many psychos are running wild it is not a justification to risk executing innocent people.

AP, if you think those are the dangerous ones, you have no idea ....

As for your last sentence, I think it's just flat out wrong. There are lots of good reasons for risking execution of innocent people, especially if you can reduce those risks to the best of your ability.

And it's always nice to be thought of as dangerous! Thanks for the complement. I thought I was losing my edge in my old age.

Ryan Waxx; I worded it right. If the legislature passes the law, The executive enacts the law, What legal standard if a judge going to use to overturn the law? I refuse to accept judges are of higher inate intelligence than the other two branches of govt

unless you are using an unrealistic and ridiculous "one is too many" standard.

It's not a ridiculous standard to expect the government to not execute an innocent person. It's a barbaric practice. Odds are most posters here are not likely to be "accidentally" put on trial for murder so the small % of cases where it might may seem negligible, but it's not to the people involved and it's an extraordinary power to grant the government, one which it has consistently shown that it is incapable of handling well.

Iowan: Point taken. But what is the effective difference between a) sentencing someone to death and b) sentencing someone to 600 years in prison?

Is not the 600 year sentence an effective death penalty?

I would think that, depending on the age of the criminal at the time of sentencing - that 50 years in jail with no hope of parole is MORE of a punishment than 15 years (as all appeals get exhausted) and being executed. But I have been to prisons and know how they operate so maybe i am biased.

I mean think about it rationally - would you rather spend 15 years in prison and then die or spend 40 years in prison and then die?? Under some of these posters thoughts, if a death row inmate commited suicide, it would be seen as somehow cheating the system and the victims out of something. What is that something?

I guess the rationale that the murderer no longer deserves to live should be truncated - the murderer no longer deserves to live and MUST BE put to death in a specific manner at a specific time or all is for naught. F-ed up way of thinking if you ask me. The goal has been achieved when the murderer dies- regardless of when, or how long, it takes to happen. So long as the person has no reasonable chance of release, whats the problem? And if your answer to this is that new evidence may arise 30 years after conviction that entitles the person to relesae, which would not have arisen if the person was executed after say 15 years, then you have just made an argument against the death penalty.

Whats Ghandi's saying on this?: If everyone followed 'an eye for an eye' - the whole world would be blind? Seems bout right. There has to be a better way to deal with this. If it takes a constitutional amendment to outlaw the death penatly - so be it.

All that you bring up are fine and valid points. My essence is for the people to debate and decide any or all of the concepts you bring up. A person by the power of his title can not supplant his ideas over and above those of the people

And for that correction to be meaningful for the "but you might kill the innocent!" argument, that hypothetical correction would have to take place about 11 years after the conviction... which is vanishingly unlikely, barring a similarly unlikely second revolution in technology that can retroactively prove innocence like the introduction of DNA testing was.

And there's another problem. Suppose that there actually were a significant number of people found innocent after 11 years.

Okay, now what?

"There's no chance of being found innocent past a certain point, only before" is logically equivalent to "there's always a chance of being found innocent" with different numbers. (For instance, compare a situation where there's a 10% chance of being exonerated before 11 years, and a 10% chance after, to one where there's a 19% chance before the 11 years, at which point one is executed and exoneration becomes useless.)

In other words, if you oppose the death penalty for this reason, you can only do so if there's some (nonzero) chance of executing innocent people that you find acceptable. It makes no sense to accept the 10%/10% version but reject the 19%/0% version.

Justice Scalia is wrong when he writes that Justice Stevens' separate opinion is the expression of "rule by judicial fiat." It is precisely because Stevens does not rule by fiat that he, despite strong misgivings about every rationale for the death penalty, eventually upheld the constitutionality of properly administered lethal injections. Scalia's vitriol, however impassioned and well worded, missed the point. Stevens only called for legislatures and courts to engage in a "dispassionate, impartial" conversation about the (many) costs and (few) benefits of state-sanctioned executions

It's not a ridiculous standard to expect the government to not execute an innocent person. It's a barbaric practice.

How come it's a barbaric practice, but imprisoning an innocent person for life isn't a barbaric practice? (Remember that if you object to it happening at all, you can't reply "well, the guy in jail might be exonerated", since exoneration doesn't happen all the time.)

The death penalty acts as a deterrent to criminals. Not executing obviously guilty murderers, traitors and the like has a societal cost, which is greater than the cost of executing the rare innocent. I admit I'd hate to be the one who was wrongly convicted and executed. That said, the capital punishment has a net benefit to society by raising the perceived cost of heinous criminality, and lowering its rate of occurrence. Of course some deny this fact. They are wrong.

As I am sure you know, there are those who think life without parole is also a barbaric sentence. I would note that those who wish to bow to the whims of the European elitists that EU's own declaration on capital punishment states, in relevant part:

Opting for a more humane, but also more effective, criminal justice system paved the way for considering appropriate alternative criminal sanctions to the death penalty. In fact European lawmakers assumed that crime could be punishable by means of non-lethal penalties, such as long-term or life imprisonment. In practice, even when the death penalty was still contemplated in law, and even mandatory, either the judge would decide upon an alternative penalty by reason of mitigating circumstances or the sentence would be systematically the object of a pardon and thus commuted.

Imprisonment for life remains the usual alternative for very serious crimes. In any case, although nearly all Member States provide for this type of punishment in their respective penal codes either as a possibility or mandatorily, it is understood rather as a principle than as a common practice.

In some countries life imprisonment can indeed be replaced by temporary incarceration once there are mitigating circumstances. Furthermore, in practically all Member States parole can be granted to those sentenced to life after having served a certain term in prison and depending on other factors, such as good behaviour, signs of readaptation or illness. Commutation of the penalty by way of pardon is also provided for in almost all the sanctions systems concerned. Moreover, in some of these countries imprisonment for life simply can not be applied to juveniles or to the mentally ill.

As to long-term imprisonment, the present criminal policy in the EU Member States clearly shows a decreasing trust in the resocialising effect of long prison sentences and is moving towards keeping imprisonment to an absolute minimum.

It is well established that long-term imprisonment, and above all imprisonment for life, fails to achieve its criminal policy’s goals, unless relevant measures are adopted in order to enable the return of the prisoner to social life at the appropriate moment. In this context, the possibility of parole is of paramount importance. In fact, a crime prevention policy which admits maintaining imprisoned for life a convicted person who has served in prison a term corresponding to the gravity of the committed crime and is no longer a danger to society, would fail to meet either recognised minimum standards for the treatment of prisoners or the goal of social rehabilitation which is achieved in view of the willingness and ability of the offender to a lead a law-abiding and self-supporting life. Moreover, it must be underlined that the United Nations (UN) Convention on the Rights of the Child expressly deals with the issue of imprisonment for life imposed on minors, stating that life imprisonment without the possibility of release shall not be imposed for offences committed by persons below 18 years of age.

So yes, "evolving standards," at least according to some, means that once the death penalty is abolished, life without parole is the next step.

@A. Zarkov (continuing our off-topic conversation, my apologies): Actually, of the frequent commenters on the Wallström blog, I am pretty much the only one defending the EU. Most other frequent commenters are British Eurosceptics, with a few sceptics from other countries mixed in. And, FWIW, I've never known them to block anyone's comment.

@PatHMV: It takes a supermajority to change the constitution, while the kind of majority that constitutes the reference point for the "standars of society" is more vague, and deliberately so. Of course the cruel and unusual punishment clause was meant to be interpreted by reference to contemporary standards. Doing it this way instead of spelling out in detail what is or isn't allowed is more in line with the drafting technique of the constitution and dispenses with the need of periodic amendment. It's one of the places where the constitution intends to create a kind of constitutional common law.

As for the rule (canon?) of statutory interpretation that says that you don't interpret terms in a way that makes something else superfluous, I'm not entirely sure whether that rule would apply the same way to the constitution, and even if it did that rule would only make sense to the extent the drafters meant the original meaning of terms to be controlling. With statutes, that is normally the case, but with the constitution it obviously isn't (see above).

As a matter of constitutional law, I don't understand how a method of punishment that is explicitly referenced in the 5th Amendment can possibly be overturned by the 8th Amendment when both were adopted at the same time.

Can I assume, by the same reasoning, that you think that dismemberment is not cruel and unusual because the double jeopardy clause implies that a person should be allowed to be put once in jeopardy of losing a limb?

@Dave N.: Actually, at least in my country (the Netherlands) LWOP is becoming increasingly common. Look at this list from the Dutch version of wikipedia which shows everyone who's ever been given LWOP. There's 14 before 2002, and 3 or more every year since, including, of course, Mohamed Bouyeri, the guy that shot Van Gogh. What's more, under Dutch law it is actually possible to end up spending your life in prison if it's simply too dangerous to let you out. People who commit (very) violent crimes often get what's called TBS on top of their prison sentence. This means that, after they've served their time, they continue to be detained, with periodic reviews by the court, until they're no longer a threat to society.

As far as I understand, though, actual LWOP where the prisoner cannot even request a parole hearing is only possible in the Netherlands and Estonia. In most other places, parole is under certain circumstances possible. Cf. wiki.

As I am sure you know, there are those who think life without parole is also a barbaric sentence.

That answers the example, but not really the general point. Any legal system will have errors, and will punish innocent people. Even if you never sentence anyone for longer than 20 years, you've still implicitly accepted that you'll be doing that to innocent people. How come it's not barbaric to sentence an innocent person to jail for 20 years? For that matter, how is it not barbaric to sentence an innocent person to 1 year (which can still be psychologically devastating, as well as ruin his chances of doing much with his life after that)?

Short of not having punishment at all, we are going to be hurting innocent people. There's really no choice.

I agree completely. You made many excellent points and your reasoning is sound. I added the link because over the last two days there have been those who have scoffed at the notion that LWOP will be the next punishment to be attacked once the death penalty is abolished and there has been at least one poster who seemed to argue that international norms were somehow relevant to American criminal law.

Kevin Mccabe: regarding your comment on "reasonable" and the 4th Amendment, you appear to be unfamiliar with Justice Scalia's jurisprudence on the 4th, 5th, and 6th amendments. He is a STAUNCH defender of the 4th amendment, often arguing for even stronger readings of the amendment than the more "liberal" members of the Court. He has, for example, held that the police using an infrared heat sensor to "view" the interior of a house is a search of that house. In the area of the 6th Amendment, he has held that the 6th Amendment entitles defendant to the private counsel (where such private counsel is willing to represent him) of his choice, not merely a "competent" defense counsel provided to him.

Your observation is just flat-out wrong, at least as far it concerns Justice Scalia, who is one of the foremost proponents of textualism.

PatHMV, I know this thread is probably dead, but this morning you posted in response to me that some bishops teach that a judge who imposes the death penalty must not receive communion. Could you please document this claim? I am genuinely interested.

zippypinhead, yes the Catechism and Evangelium Vitae (on which that § 2267 is based) are key to understanding Catholic teaching. Scalia, in the article to which I linked, clearly understands that these authorities reject retribution as a justification for capital punishment. He, in turn, does not receive the teaching because it contradicts what he believes to be the authentic tradition. The Catechism is pretty clearly telling you, though, that executing murderers in the United States is wrong, given that it doesn't seem to defend anyone's life. Some argue that deterrence counts as defense, but this argument is very problematic for Catholics. I think most Catholic death-penalty supporters are retributionists who don't accept the rug being pulled out from under that rationale.

Bama, I'm merely pretty sure that is the case. I'm afraid I don't have any links at my fingertips. I am inferring largely from what I do know to be the case about the position taken by at least some bishops about Catholic politicians who vote to allow abortion. Quite a few have taken the position that, with only a few exceptions, a Catholic legislator who votes in favor of abortion rights may not partake of communion.

On quick googling, Bama, try here. Mostly, the question is raised by those who are upset about the bishops' position on communion for abortion-rights supporters, and are trying to claim (erroneously) that it is hypocritical for an abortion foe to support the death penalty.

Good lord, where have you people been in the last few years? The governor of Illinois several years ago actually stopped all death penalty cases because of the overwhelming number of innocent people found to be on death row. And he was a Republican! Seventeen people were set to be executed, but the Illinois Innocence Project found enough evidence to produce acquittals. I suppose ruralcounsel and others would be perfectly happy to have them executed anyway, because society would collapse and all, right?

Scalia wants one name of an innocent put to death. How about two? Sacco and Vanzetti have been widely figured as innocents who were put to death more because of anti-immigrant and and anti-anarchist feelings that any real evidence of guilt. (I won't even mention the many blacks have been put to death in the south based on flimsy evidence lest someone 'demand' where I know that happened, so I won't). And I guess no one ever saw The Thin Blue Line.

Rural counsel: "To allow that to prevent us from trying to remove some of the most brutal, evil, and criminal elements from our society permanently is to allow ourselves to be paralyzed by over-analysis and second-guessing. It is a recipe for utter failure of society." So I guess Illinois is now an utter failure of society?

People, have a little self respect. No one here has argued that the guilty shouldn't suffer any punishment. What we are arguing is execution vs. something less, such as lifetime imprisonment. Isn't that 'permanently removing' people from our society? What's so 'soft' about that?

Thank goodness some law students volunteered and found evidence that those 17 people ( any many more in other states as well) were innocent. It just proves that our system of justice isn't just imperfect, it's much worse than that.

Randy R.
I suppose ruralcounsel and others would be perfectly happy to have them executed anyway...

Now there is an extraordinary false and dishonest premise! Nothing anybody has written indicated a desire to deliberately execute innocent people. The debate has largely centered on degree of certainty of guilt versus the risk of wrongly executing someone. It's a question of risk versus reward, cost versus benefit.

"To allow that to prevent us from trying to remove some of the most brutal, evil, and criminal elements from our society permanently is to allow ourselves to be paralyzed by over-analysis and second-guessing. It is a recipe for utter failure of society." So I guess Illinois is now an utter failure of society?

Guess you'll have to ask the family members of the next person murdered by someone. If it were someone in my family, and the legally convicted murderer couldn't be put to death, the answer would be YES. An utter failure.

PatHMV: Great observation. Unfortunatley, I don't remember ever mentioning Scalia in any point I was making regarding the 4th, perhaps you could point it out to me? The relevant portions are listed below (spelling errors and all) for your convenience.

Guest 101 : I will add to your point by noting the way that the Sup Ct handles 4th amendment "reasonableness" issues. Generally, they rely on precedent or some test to determine what is "reasonable." But sometimes there is no precedent and it becomes an issue of first impression - such as when new technology comes out that allows law enforcement to do something previously they could not and which the founders could not possibly have anticiapted. And what is "reasonable" under the 4th amendment then is and only can be what the Justices decide is "reasonable."

Not surprisingly, the same people who bitch about your point regarding the 8th amendments "cruel and unusual" phrase utter nary a peep when it comes to granting law enforcement new powers to search and seize so long as the Sup Ct decides the tactics employed are "reasonable" to them.

__ ___ __ _ _ __ _

I suppose in a thread on the topic of Scalia it could be presumed, and I should have written more precisely to denote i wasn't referring specifically to scalia's 4th amendment jurisprudence. My bad.

Martinedd wrote:
"
No death penalty:
- If it is cruel, or
- If it is unusual, or
- If there has been a failure of due process. "

I don't think that's correct. It's generally not a good idea to try to constrain normal language to formal logic, but by the wording of the amendment it should be:

"No death penalty:
- If it is cruel AND unusual, or
- If there has been a failure of due process. "

Has this been decided otherwise in past decisions? I'm not a lawyer, and given that they had used 'Nor' twice in the amendment it seems likely they would have used it again if they meant them to be considered separately

Thread is dead, but PatHMV couldn't find anything and I haven't been able to, either. While it may seem likely that a bishop somewhere takes the position that judges who impose death sentences may not receive communion, there's no concrete evidence of any bishop actually doing so.

In the absence of direct evidence, I would be very cautious of assuming that such communion bans exists.

For example, despite strong opposition to war with Iraq within the Catholic hierarchy, exactly one bishop who is in communion with the pope and has ordinary jurisdiction in the United States took the position that his flock must not fight in Iraq.

But if society thru its elected legislators enacted the punishment and a jury chose the punisment, any judge would have no legal standing to overturn the will of the people.

I don't have any comment about the window washer example, other than to say that generally it is the judge alone who sentences a criminal defendant, not the jury.

My main point though, is that the whole point of the Bill of Rights is to "overturn the will of the people," at least if you define "the will of the people" to be "something enacted by a legislature." None of the rights in the Bill of Rights has a clause saying the right doesn't apply where the legislature passes a law saying it doesn't. Put another way, the point of the Bill of Rights is to restrain what a government can do. If the government was always right you wouldn't need a Bill of Rights.

Of course one can always argue in individual cases whether a specific situation falls within a constitutional right, but I don't think any serious argument can be made that just because something is enacted by a legislature, that automatically makes it consistent with the Constitution. And if it is inconsistent with the Constitution, and the Constitution is the supreme law of the land which it is, and judges are obligated to apply the law (which they are), it is not open to a judge to give the legislature a free pass just because it's "the will of the people."